for R-2
and 3 Ms. Saritha for R-6,9,13,14,16,24,25,26,32,37,and 38 in OA No.216/2009,
S. Prakash Shetty, ACGSC for R-1, and
Shri V.N. Holla, ACGSC for R-2 and 3 in OA No.260/2009 M. Rajakumar ACGSC for R-1, and Shri Vishnu
Bhat for R-2 and 3)

OA No. 13/2010

1. G. Nagaraj,

S/o Late
Hanumanthappa,

Aged 47
years, Working as SDE,

(CSC/MS),
BSNL, 8th Main, Co-axial Building

P.J.
Extension, Davangere.

2. Hanumanthappa Bajari,

S/o
Bhimappa, aged 48 years,

Working
as AGM (O&P),

O/o GMT,
BSNL Bhavana,

P.B.
Road, Davangere. ... Applicants

(By Advocate
Shri A.R. Holla)

Vs.

1. Union of India, by Secretary,

Ministry
of Communications & Information Technology,

Department of Telecom Services,

Sanchar
Bhavan, No.20, Ashoka Road,

New Delhi
-110 001.

2. Bharat Sanchar Nigam Ltd., Corporate Office,

4th
Floor, Bharat Sanchar Bhavan, Janpath,

New Delhi
– 110 001, by its Chairman and

Managing
Director.

3. The Chief General Manager, Telecom,

Karnataka
Circle, BSNL,

No.1,
Swamy Vivekananda Road,

Ulsoor,
Bangalore – 560 008.

4. Ms. P. Radha,

Sub-Divisional Engineer (HRD),

O/o the
TDM, BSNL,

Dr.
Shanka Gowda Building,

New E.K.
Minu, Raichur – 584 101.

5. Ms. R. Mala,

Sub-Divisional Engineer (Indoor),

City
Telephone Exchange, BSNL,

Sampangiramnagar, Bangalore – 560 009.

6. Sri H.M. Soratur,

Sub-Divisional Engineer,

CCI City
Exchange, BSNL,

Sampangiramnagar, Bangalore-560 009.

7. Sri V. Mohan,

Sub-Divisional Engineer,

Telephone Exchange, Chellekere,

BSNL,
Davanagere District.

8. Sri B.M.
Budinal,

Sub-Divisional Engineer (G),

Chada
Chan, BSNL, Bijapur – 586 101.

9. Sri K.L. Shivanna,

Sub-Divisional Engineer (Phones),

Urban
Telephone Exchange, BSNL,

Belt
Road, Chikkamagalur – 577 101.

10.Sri M.H. Prakash,

Sub-Divisional Engineer,

O/o the
D.E. (R), BSNL,

Davanagere – 577 006.

11.Sri J.H. Channa Krishnappa,

Sub-Divisional Engineer,

C.DOT
Exchange, BSNL,

Chikkaballapura, Kolar District.

12.Sri Mariyappa A. Dasar,

Sub-Divisional Engineer (Groups),

Kushal
Nagara Telephone Exchange,

BSNL,
Kodagu District. ... Respondents

(By
Advocates S/Shri M. V. RAO SCGSC for R-1, and

Shri Vishnu Bhat for R-2 and 3)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

These four O.As have the same point
as was involved in the other four O.As No.227/2009, 309/2009, 399/2009 &
440/2009, already decided by this Tribunal through an exhaustive discussion of
facts and history and they apply to present O.As also. The O.As arise out of 4 orders of the DoT
(Now BSNL).

2. The first order pertains to the
promotion of 68 JTOs of Karnataka Circle, for whom, there were no vacancies
under the old Recruitment Rules and their promotions should have been guided by
new Recruitment Rules dated 23.7.1996.
Their promotions were challenged and were quashed (with certain directions)
by CAT, Bangalore in O.A. No.624/1997 on 23.07.1998. The second order in question was passed by
the department on 21.10.1998 creating 1966 posts of TES Group 'B' with
retrospective effect from 15.10.1993,
which in effect, annulled the seniority claim of the present applicants and was
also quashed by CAT, Bangalore Bench in O.A. No.946/1998, etc., on
31.8.1999. The Tribunal order was
challenged in High Court, but upheld by order dated 30.05.2000 in W.P. No. 43253-55/1999. In the meantime, BSNL passed order dated
30.4.2005 which is seniority list No.5 and which continues to treat those
promoted 1966 JTOs as senior. There followed a series of litigations whose
history is narrated in the 4 O.As referred above. All that resulted in the order dated 9.3.2009
of the BSNL, which is impugned herein.

3. For the sake of convenience, the matrix
of OA No.216/2009 is taken up for consideration.

4. The applicants in OA. No.216/2009,
260/2009 and 308/2009, belong to Scheduled Caste category and the applicant in
OA No.13/2010 belongs to Scheduled Tribe category, in contrast to the 16
applicants of earlier four O.As mentioned above, who all belong to the General
category.

5. The entire history narrated in OA
Nos.227/2009, 309/2009, 399/2009 & 440/2009, holds good in this case also,
except for the additional point that applicants here are from reserved category
and the claim of some other promoted JTOs belonging to SC/ST categories in the
Seniority List No.5, dated 30.4.2005 will have to be kept in mind. The BSNL claims that, when they issued
promotion order of JTOs on 21.10.1998 against the 1966 posts, which they were
created retrospectively w.e.f.15.10.1993, they had promoted such qualified
JTOs, who had passed the qualifying examination prior to the new Recruitment
Rules. In doing so, they overlooked the
fact that all of the 1966 promotees belonged to General category. Thus, their appointment would not take care
of the statutory requirement for reservation to SC/ST category. To take care of this aspect, they were
required to hold the qualifying examination as was the requirement under the
earlier Rule. Hence, they conducted two
examinations, one, in the year 2000 and
another in the year 2003. Those SC/ST
JTOs, who qualified against such examination were required to be promoted under
the older Recruitment Rules of 1981.
Hence, even though, their year of recruitment is subsequent to the year
of recruitment of the present applicants, they have a claim of seniority over
the present applicants, who are also from reserved category.

6. We may recall here that, under the
older Recruitment Rules, only those JTOs could be promoted to TES Group 'B'
(Seniority Quota) who could pass the qualifying examination. This Rule was changed with effect from 23.7.1996,
when the criterion of qualifying examination was withdrawn for the 75%
seniority quota. Though for the 25%
Merit quota, the requirement of Merit examination remained. We are concerned only with the Seniority
Quota at this stage. The 39 private
respondents are all those JTOs who have qualified in the qualifying examination
held in 2000 and 2003. The respondent
department claims that because of such passing, they have a claim of seniority
over the present applicants under the reserved category who have not qualified
the examination. It is for this reason,
that their names have been included in the seniority list No.5 from Sl. No.379
to 413. The applicants who have not
qualified such examination, are therefore, included in Seniority List No.6,
thus, making them junior to all those in the Seniority List No.5 including the
39 private respondents.

7. Thus, we have three points in the
argument of both the counsels which needs to be examined:-

(1) Between
15.10.1993, on which date the department had created 2636 excess TES Group
'B' posts in order to take care of the
judgment in P.N. Lal's case and 23.7.1996 when the new Recruitment Rules became
effective, what was the vacancy position available with the DoT? How many vacancies were filled under the
SC/ST reservation quota and what was the SC/ST vacancies remaining as on
23.7.1996. Though, the respondents
would submit that this aspect is important and the claim of the 39 private
respondents for inclusion in the Seniority List No.5 arises out of this, they
have not supported this stand by any authentic facts and figures. On the contrary, we find that they have
treated this factor as irrelevant in the present case for the reasons explained
below.

(2) The
1966 officers promoted on 21.10.1998 are no longer occupying any posts created
retrospectively with effect from 15.10.1993.
That claim of retrospective seniority has been dropped by the respondent
department while issuing the impugned order dated 9.3.2009. The supernumerary posts now created to
accommodate them are created with effect from 21.10.1998 to 25.4.2000. This part of the impugned order should be
read along with the fact that on 26.4.2000, the respondents issued bulk orders
promoting 5626 officers who are all from the seniority category and claim
simply seniority (as per the requirement of the new Recruitment Rules), but,
have not passed any qualifying examination which was the requirement of the
older Rules prior to 23.7.1996.

(3) It
is also important to note that many JTOs promoted on 26.4.2000 are junior to
the 1966 earlier promoted officers (now to be read as 1369 supernumerary
officers). Still, the fact remains that
the 16 applicants in the earlier referred cases (O.A. Nos. 227/2009, 309/2009,
399/2009 & 440/2009) and the four applicants in the present four cases and
perhaps, many more are senior to these 1369 supernumerary officers, when
compared strictly on the basis of seniority.

8. Thus, the pertinent question here is
not of comparing the present 4 SC/ST applicants vis-a-vis the 39 private respondents
of the SC/ST category, but, of comparing them vis-a-vis those 68 Karnataka
Circle officers (from out of 1966), who cannot be treated as promoted under the
older Recruitment Rules, but, have remained included in the Seniority List
No.5. We find therein that many out of
those 68 officers starting from
Sudheendra at Sl. No.348 upto Shri Palani. T at Sl. No.379, appear above
the 39 private respondents. This
demolishes the claim of the respondent department that these 39 reserved
category officers have come against the reserved category vacancies that
existed before 23.7.1996. If by
application of impugned order dated 9.3.2009, the 1966 posts lose their label
of "created w.e.f. 15.10.1993", but, have acquired a new label
of "created for the period 21.10.1998 to 25.4.2000", then there is no availability of SC/ST
posts prior to 23.7.1996 as a part of 1966.
The department may have to re-examine the whole issue of reservation and
placement of present 39 respondents against reserved category vacancies prior
to 23.7.1996, if there are any such.
Otherwise, they will have to be included as an additionality to the 1369
supernumeraries. Since, that issue is not before us, we would leave the
department to complete their own exercise.
Hence, coming back to Seniority List No.5, we would not comment about
what position should be given to these 39 SC/ST officers appearing at Sl.
No.380 to 413 vis-a-vis Sudheendra and his group of 24 persons. However, as far as the present four
applicants are concerned, they have to come above Sudheendra and group in the
Seniority List No.5, because, their year of recruitment is prior to the
recruitment of Sudheendra and group.
Thus, their seniority over-rides those of Sudheendra and group, irrespective
of whether they belong to General category or reserved category.

8. We, therefore, direct the respondent
BSNL, to modify the Seniority List No.5 and 6 to the extent that four present
applicants will have to be placed above the position of Sudheendra and
group. The respondent BSNL, should carry
out this exercise within two months from the date of this order and give them
the notional seniority. Consequential
financial benefits will accrue from the date of this order. No order as to costs.

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